concurring in part; dissenting in part.
I generally concur in the majority decision but dissent *807from its award of $14,395.20 of the proceeds from the sale of the decedent’s home to defendant Fay McConnell.
The majority correctly concludes that Fay did not carry his burden to prove that the decedent intended to make a gift to him in June 1980 of $30,000 of the proceeds from the sale of the home. (71 Or App at 805.) It then goes on to award him $10,000 of the proceeds, which Fay placed in a joint savings account with the decedent, and the balance of the proceeds, $13,395.20. The majority finds an award of the $10,000 joint savings account created by Fay from the decedent’s funds to be appropriate, because it is “consistent with [the decedent’s] intent in establishing the joint accounts with him in the early 1970’s * * (71 Or App at 806.) It awards the $13,395.201 to Fay on the same basis and because it finds his testimony “convincing.” It asserts that the burden then shifted to plaintiffs to prove that those funds “should not go to Fay” and concludes that plaintiffs have not met that burden.
I do not find Fay’s testimony about these sums, totaling $23,295.20, to be any more convincing than his testimony that the decedent intended to make him a gift of the $30,000. The majority’s finding that it was consistent with the decedent’s acts in creating joint accounts with Fay in the early 1970’s is untenable. The earlier joint accounts were created and funded by the decedent with her own funds; the accounts in issue were primarily funded from the decedent’s funds by Fay, while he stood in a fiduciary relationship with her. Fay’s unconvincing testimony and the majority’s incorrect finding cannot support a conclusion that the burden of proof shifted to plaintiffs. It remained Fay’s, and he failed to carry it.
The majority finds that Fay failed to carry his burden to prove that the decedent intended to make him a gift of $30,000 of the proceeds from the sale of the decedent’s home, even though he testified that she did. It concludes, however, that Fay is entitled to the $10,000 savings account, which he claimed as part of that gift, and to the $13,395.20 balance of the proceeds, in spite of the fact that he did not even claim that the decedent intended to make a gift of it to him. Surprising conclusions!
*808I cannot concur in the majority’s awarding defendant Fay McConnell the contested sum of $14,395.20 from the proceeds of the sale of the decedent’s home. Therefore, I dissent from that part of the majority decision.
For some reason not evident from the briefs, plaintiffs do not contest the award of $9,000 of the proceeds of the sale of the house to Fay, but only the remaining $4,395.20.